OPINION OF THE COURT
The question under consideration in these matters is whether a financial statement submitted to a public board operating under a mandate of confidentiality, is subject to a subpoena duces tecum by a Grand Jury.
Suffolk County Local Law 12-1978 requires all elected county officials, department heads, chief deputies and all exempt personnel graded 32 and above to submit a financial statement to the Board of Public Disclosure (referred to hereinafter as the Board), delineating their business and financial interests. The consequence of failure to file a financial statement is suspension of pay and possible dismissal from public employment. (See Suffolk County Local Law 12-1978, § 10, subd [a].)
“Defendant” — as the movant Lou V. Tempera refers to himself in his motion papers — filed a financial statement with the Board in accordance with the law. From the time of filing to this date, “defendant” has not waived his entitlement to confidentiality. Further, the Board has not authorized public disclosure of the document.
The People have served a subpoena duces tecum on the Board for production of “defendant’s” financial statement. “Defendant” and the County of Suffolk — on behalf of the Board — move in separate motions pursuant to CPLR 2304 for an order quashing the subpoena duces tecum. The People oppose these motions.
A Grand Jury, as a general rule, has a right to evidence to assist it in its duties. Exceptions warrant close scrutiny. In the words of Wigmore: “When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule” (8 Wigmore,
The movants independently seek to quash the subpoena on several grounds. First, the Board and “defendant” urge that a subpoena requiring production of the records of the Board would violate “defendant’s” privilege against self incrimination as contained in the Fifth Amendment to the United States Constitution. Second, “defendant” claims that compliance with the subpoena would abridge his Fourth Amendment right to privacy. Third, “defendant” alleges that the subpoena is unlawful because it would be utilized “to prepare an already pending indictment for trial.” Last, the Board asserts that compliance would “violate the legislative mandate of confidentiality and the specific prohibition against disclosure as required by Suffolk County Local Law 12-1978.”
The first argument raised on these motions is that a subpoena of the “defendant’s” financial disclosure statement, would be violative of his Fifth Amendment privilege against self incrimination. While this argument is not dispositive of the issue raised by this motion, it is being considered inasmuch as both the Board and “defendant” have raised it and inasmuch as this argument is often raised where Grand Jury subpoenas are involved. The Fifth Amendment, which protects individuals involved in State judicial proceedings (Molloy v Hogan, 378 US 1) as well as Grand Jury investigations (Counselman v Hitchcock, 142 US 547), provides that no person “shall be compelled in any criminal case to be a witness against himself”.
The focus of any Fifth Amendment analysis begins with whether the accused is being compelled to testify “against himself”. In the present case, the compulsion has been directed solely toward the Board. It is not “defendant” who
In determining whether this ingredient of personal compulsion exists, the Supreme Court has stated that “actual possession of documents bears the most significant relationship to Fifth Amendment protections against governmental compulsions” (Couch v United States, supra, p 333). However, the court went on to say that actual possession is not always a necessary element. “[Situations may well arise where constructive possession is so clear or the relinquishment of possession is so temporary and insignificant as to leave the personal compulsions upon the accused substantially intact” (Couch v United States, supra, p 333).
In the present situation, “defendant’s” submission of the financial statement to the Board was neither temporary nor insignificant. The statement became a record of the Board which could not be retrieved by “defendant”. Under these circumstances, constructive possession simply does not exist. Therefore, personal compulsion is not present in this case, and “defendant’s” contention that production of the statement by the Board would violate his Fifth Amendment privilege against self incrimination is without merit.
In connection with the Board’s argument that compliance with the subpoena would be violative of “defendant’s” right against self incrimination, it should be noted that the Supreme Court has held that the privilege against self
“Defendant” also moves to quash the subpoena herein on the ground that it would violate his Fourth Amendment protections against unreasonable searches and seizures.
In certain situations, a subpoena duces tecum can constitute an unreasonable search and seizure (Boyd v United States, 116 US 616, 622). A subpoena is compulsory in nature and, as such, may be equated with other compulsory production orders, such as warrants, which are more frequently identified with Fourth Amendment violations. Implicit in this argument is that compulsory production by subpoena is disclosure in violation of the Fourth Amendment despite the fact that production is required before a Grand Jury only. The Supreme Court has so held that the right of privacy protected by the Fourth Amendment is applicable to such compulsory process which intrudes into a person’s zone of privacy (United States v Miller, 425 US 435). Compulsion alone, however, is not enough to invoke the constitutional protection. Compulsory production must violate a protectable privacy right to be within the spirit and meaning of the amendment (see Boyd v United States, supra; United States v Miller, supra, p 443).
In determining what constitutes a Fourth Amendment privacy right, the United States Supreme Court has held that “‘no interest legitimately protected by the Fourth
The Miller court was confronted with the issue of whether a subpoena duces tecum served upon two banks, which sought checks and other bank records of petitioner, ran afoul of petitioner’s Fourth Amendment rights. The court concluded that there was no Fourth Amendment violation inasmuch as there was no legitimate expectation of privacy in these records. “The checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained [by the subpoena], including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business” (United States v Miller, 425 US, supra, at p 442).
In contrast, the present action involves a financial statement which “defendant” was required to produce and
What could be more reasonable than reliance on a legislative pronouncement? The language of the local law is clear — a reasonably prudent citizen, taking note of the nondisclosure provision, is left with no doubt as to its meaning. This law limits those who are entitled to view the financial statement as well as when and how a disclosure is authorized. Further, statements are procured for a limited purpose. Anything falling outside the scope of this stated purpose is confidential by the very wording of the law. In this perspective, the subpoena under consideration is inconsistent with the safeguards provided by the local law. In an ordered society, people look to the law — be it statutory or otherwise — for guidance. When an individual loses confidence and, in turn, respect for the law because of its dubious application, our system of justice is undermined. Clearly, “defendant’s” expectation of privacy was therefore reasonable.
Furthermore, this court does not overlook that the Supreme Court of the United States has held that a person having no proprietary interest in documents belonging to a third party cannot assert the Fourth Amendment to prevent their compelled production by the third party (see United States v Miller, 425 US 435, supra; California Bankers Assn. v Shultz, 416 US 21, supra; Donaldson v United States, 400 US 517). However, the ratio decidendi
These policy considerations are neither wholly unique nor unfamiliar. In Matter of New York State Dept. of Taxation & Fin. v New York State Dept. of Law, Statewide Organized Crime Task Force (58 AD2d 298, affd 44 NY2d 575), the Appellate Division reversed an order of the County. Court denying a motion to quash a subpoena duces tecum. In affirming the Appellate Division, the Court of Appeals held that the nondisclosure provisions of subdivision (e) of section 697 of the Tax Law required that the Department of Taxation and Finance refuse to comply with a Grand Jury subpoena duces tecum for production of an individual’s tax return. The court reasoned that statutes which proscribe the use of compulsorily reported information in a manner that might be harmful to the complying individual are intended to protect the privacy interests of the individual and to promote the government’s administrative goals by encouraging both candor and full compliance with laws governing the disclosure of information. These same considerations are plainly applicable to this case.
If the Legislature had intended that financial statements were to be available in judicial proceedings, it is certain that it would have explicitly excepted that from the nondisclosure provisions. Under the general rule of statutory construction — expressio unis est exclusio alterius — the express mention of certain specific exceptions to a statute’s general provisions excludes all other exceptions. (Gotkin v Miller, 379 F Supp 859, affd 514 F2d 125; Herzberg v Finch, 321 F Supp 1367.) The Suffolk County law now under consideration is explicit and specific in its articulation of when and how disclosure is authorized, as well as under what circumstances exceptions are to be made to the nondisclosure provisions. Plainly, had the county legislature intended that the Board’s records be subjected to court process, it would have so provided when it carefully delineated the exceptions to nondisclosure.
Inasmuch as the local law created an expectation of privacy in “defendants” financial statement which “defendant” relied upon and inasmuch as the local law created an expectation of privacy in regard to the document which was reasonable, the court concludes that there exists a protected privacy right under the Fourth Amendment’s proscriptions against unreasonable searches and seizures. Accordingly the subpoena must be quashed.
The nature of the public interest privilege was explained in People v Keating (286 App Div 150, 152-153) as follows: “In addition to the statutory, there is quite another kind of privilege recognized in the courts. This privilege attaches to confidential communications between public officers, and to public officers, in the performance of their duties, where the public interest requires that such confidential communications or the sources should not be divulged. (Matter of Egan, 205 N. Y. 147, 157; Lewis v. Roux Trucking Corp., 222 App. Div. 204; People ex rel. Heller v. Heller, 184 Misc. 75; 70 C.J., Witnesses, §§ 616-617; 8 Wigmore on Evidence [3d ed.], § 2367 et seq.) The invocation of this rule of nondisclosure requires that (1) the person in whom the confidence is placed be a public official; (2) that he be acting in the performance of his duties; and (3) the communication be in the public interest.”
The situation herein satisfies the requirements of this privilege. First, the Board of Public Disclosure is an official governmental agency created by the Suffolk County Legislature. Second, the procurement of “defendant’s” financial statement is within the scope of the Board’s duties. In fact, the very purpose of the Board is to obtain such documents in order that it may function as a public watchdog. Finally, as has been earlier discussed, the communication is in the public interest.
In Fischer v Citizens Committee (72 Misc 2d 595), a special commission investigating a prison uprising moved to quash a subpoena duces tecum requiring the commission to surrender the files and records of the commission to a Special Grand Jury. The court held that inasmuch as it was necessary for the commission to promise confidentiality to its witnesses in order to function, the public interest privilege prevented yielding the commission’s records to the Grand Jury. The court stressed that it recognized the existence of two competing public interests: “On the one hand there is the public interest in the Grand Jury’s exercise of its constitutional power to obtain all relevant evidence for the purpose of holding those responsible for
Similarly, this court is faced with the prospect of balancing competing public interests. The court recognizes that the Board performs an important public watchdog service and that its ability to effectively fulfill its duties depends, in no small degree, upon its ability to promise that the sensitive financial data it acquires will remain confidential. In such a situation, the public interest in nondisclosure outweighs the public interest in aiding the Grand Jury investigation. Accordingly, this court is of the opinion that “defendant’s” financial disclosure statement is protected from a subpoena duces tecum by reason of the public interest privilege as well.
Because the court has quashed the subpoena herein for the above-stated reasons, it is unnecessary to reach “defendant’s” remaining contention.
It shall be noted that in a recent decision of the Nassau County Court, it was unsuccessfully argued that a section of the Public Housing Law providing for nondisclosure of information contained in housing applications precluded the Grand Jury from obtaining this information by subpoena (Matter of Housing Auth., 107 Misc 2d 1015). Therein, the court reasoned (supra, p 1017) that “[t]o permit tenants and prospective tenants to file applications and financial statements free from criminal investigation would contravene public policy and be detrimental to the public interest.” Further, the court stated that the law was intended to protect applicants from “public disclosure” not from disclosure before a Grand Jury, whose proceedings are secret.
This court is of the opinion that the above case is not dispositive of the present motion. In that case, the Grand
Accordingly, the movants’ motions to quash the subpoena duces tecum served upon the Board of Public Disclosure for the “defendant’s” financial disclosure statement are granted.